It was suggested that Chadwick J should not continue with the case, having heard previous hearings. He refused to recuse himself. The defendant appealed.
Held: Counsel must use his own and conscientious judgment that there was proper evidence before asking a judge to stand down for apparent bias. Sir Thomas Bingham MR asked the question whether a reasonable and fair-minded person sitting in court and knowing all the relevant facts would have a reasonable suspicion that a fair trial was not possible. He continued: ‘Most, if not all, of the cases in which this test has been discussed have been cases of modest dimensions. We know of no case approaching the scale of this where a charge of apparent bias has been made. That makes it the more important to recognise, as we understand to be agreed, that the hypothetical observer is not one who makes his judgment after a brief visit to the court but one who is familiar with the detailed history of the proceedings and with the way in which cases of this kind are tried. We find assistance in observations made in the Supreme Court of New South Wales by Mahoney JA in Vakauta v Kelly (1988) 13 NSWLR 502, 513A: ‘In considering the content of the apprehended bias principle the court must look to, inter alia, two things: what are the norms or standards relevant to the kind of case before it; and whether, on the facts, the requirements have been fulfilled.”
. . And ‘In a case such as this, in which interlocutory applications proliferate, it may well be that one side fares more successfully, perhaps much more successfully, than the other. There are a number of possible explanations for this, the most obvious being that the successful party has shown greater judgment, determination and knowledge of the rules than its opponent. Mr Ross-Munro accepted, as we understood, that no inference of apparent bias could be drawn from the fact that most, or all interlocutory applications had been decided against Dr Hashim. We agree. He also disclaimed any attack on the correctness of Chadwick J’s interlocutory decisions. This we find puzzling. It must, we think, be hard to show consistent unfairness in the absence of consistent error.’
Judges:
Sir Thomas Bingham MR
Citations:
Times 08-Jul-1993, Independent 30-Apr-1993, (1993) 5 Admin LR 348
Jurisdiction:
England and Wales
Cited by:
Cited – Otkritie International Investment Management and Others v Urumov CA 14-Oct-2014
The claimants brought proceedings against several defendants. There had been a series of hearings conducted by a single judge leading to findings that several defendants had been involved in a fraud. The defendants sought recusal of that judge . .
Lists of cited by and citing cases may be incomplete.
Legal Professions, Natural Justice
Updated: 10 May 2022; Ref: scu.77847